Wall – E [stablishment]

Distinctly American in origin, the separation of church and state is deeply rooted in our American way of life. Yet this concept of separation has never appeared to be free from debate as to its meaning. A clearly defined and consistently pursued Supreme Court precedent was strikingly absent until 1947 when Justice Hugo L. Black wrote the majority opinion in the case Everson v. Board of Education.

Justice Hugo L. Black within the majority opinion produced the Court's initial formulation of an establishment standard. He stated, "The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach."

Yet cracks in that wall are ever present and ever dangerous.

Case in point is a law in Illinois involving years of acrimony and an equal number of years of courtroom drama. At issue is a statute first passed in the 1960s encouraging Illinois school children to engage in a moment of silence at the beginning of each day. A law whose language was originally innocuous was amended in 2007 causing many to question its constitutionality. The new law, entitled The Illinois Silent Reflection and Student Prayer Act, went beyond encouragement and now mandated all schools and students to comply.

Mandating a moment of silence, however, was not the problem. Mandating the encouragement of “prayer” was. Though never the final word on the meaning of the establishment of religion, a Federal judge has ruled the Illinois statute unconstitutional. Voluntary prayer in school is OK. Requiring public school teachers to teach and encourage prayer is not.

Judge Robert Gettleman used the Lemon Test to settle the dispute in Illinois. This test is a byproduct of the Court’s opinion in the case Lemon v. Kurtzman (1971). The Lemon standard for judging establishment clause violations is:

1. A statute must have a secular legislative purpose;
2. A statute must have a principle or primary effect that neither advances nor inhibits religion; and
3. A statute must not foster an excessive government entanglement with religion.

As Judge Gettleman argued in his opinion, the Illinois statute mandating silent reflection and student prayer clearly violated the Lemon test. You do not need to be a judge to reach that conclusion.

So why did the Illinois legislature pass a law so clearly in violation of the constitution?

The sponsor of the bill in Illinois claimed, “Here in the General Assembly we open every day with a prayer . . . I don’t get a choice about that. I don’t see why the students should have a choice.”

A bigger choice is will we be vigilante in guarding our liberties? Will the Bill of Rights continue to limit an ever-intrusive government? We must keep watch.

The "wall between church and state" continues to symbolize not so much the way it has always been but the way in which "we the people" want it to be. If we do not watch carefully others might have a different idea - even those in whom we have placed our trust.